Right to opt-out of 48 hour limit under review

Under the current EU Working Time Directive, employers can agree with their staff that they opt-out of the cap of 48 hours the law currently imposes on the working week. But the opt-out right is under review.

Are your employees working too hard?

And is the situation about to change?

According to Trade and Industry Secretary, Patricia Hewitt: "Stressed workers with frayed nerves cannot perform to their maximum and employers know the damage this can do to commercial success – stress costs British industry £370m a year. That is why it is down to employers and employees to work together to find sensible work-life balance solutions."

Whilst the problem is not unique to the UK's marketing services industry, there is no denying that the industry's 'work hard, play hard' ethos means stress caused by long working hours is something employers cannot afford to ignore. It was recently revealed that many advertising employees regularly work 50 or even 60-hour weeks, often leaving the industry as a result.

The problem has become so serious that the Institute of Practitioners in Advertising (IPA) is introducing training for people in agencies to help them work fewer hours.

The situation is also being considered, more generally, at a European level. The European Commission recently claimed that not only do Britons work the longest hours in the EU, but that they are being routinely and unfairly forced to opt-out of their right to work no more than an average 48-hour week.

Background

The EU's Working Time Directive aims to protect workers from health and safety risks caused by long hours and stipulates that workers should not work more than an average of 48 hours per week over a fixed period.

It is possible to opt out of some parts of the Directive, and the UK has done so. UK workers can opt out of the average 48-hour week provided they waive this right in writing.

The end of the opt out?

Whilst the opt-out is not specific to the UK, the UK makes the most use of it, with twice as many Britons opting out of the 48-hour week as elsewhere in Europe. It is for this reason that the Commission are consulting on the legality of the opt-out.

This consultation will be welcomed by the IPA. Anne Murray-Chatterton, director of training at the IPA, says: "People are working increasingly hard, sometimes too hard and it is damaging to them as individuals, damaging to their employers, the advertising industry and damaging to the wider economy".

Opposing this view is the Confederation of British Industry (CBI), which is campaigning for Britain to preserve its right to implement the opt-out. The CBI claims that the Commission is right to recognise the importance of choice over working hours and Susan Anderson, CBI's Human Resources Director, states, "This review must not lead to the removal of that vital freedom."

So what does this mean for your employees?

If the Commission concludes that the opt-out should be removed, the impact on working hours in the UK could be considerable. Those workers who currently work more than 48 hours per week (on average over a fixed period) will no longer be able to do so, and if they do, their employers will be liable to penalties.

However, the outcome may not be as severe as some believe. It will still be possible to work for more than 48 hours a week occasionally, so long as this does not continue over a long period to bring the average working week over that level. Also, some workers – mainly those in managerial positions who have complete control over their own time – are exempt from the Working Time Directive in any event.

Only time will tell whether removal of the opt-out would reduce workers' stress levels and encourage creativity or actually increase stress and stifle creativity by demanding the same results in less time.